By an Act also made in the reign of the late King William, persons who apprehend and prosecute to conviction any who feloniously steal goods to the value of five shillings, out of any house, shop, warehouse, coach-house or stable, or shall assist, hire or command any person to commit such offence; then such person so taking as aforesaid, shall have a certificate gratis from the Judge or Justices, expressing the parish or place where such felony was committed; which certificate shall be capable of being once assigned over, and shall exempt its proprietor or assignee from all parish and ward offices, in the parish or ward wherein the felony was committed.
By an Act made in the fifth year of the late Queen, persons apprehending one guilty of burglary, or of feloniously breaking into a house in the day-time, and prosecuting to conviction, shall receive over and above the certificate before mentioned, the sum of forty pounds, as in the case of apprehending an Highwayman.
By an Act passed in the sixth year of the late King, whoever shall discover, apprehend, or prosecute to conviction without benefit of clergy, any person for taking money or other reward, directly or indirectly, to help persons to their stolen goods (such persons not having apprehended the felon who stole the same, and brought him to trial, and given evidence against him) shall be entitled to a reward of forty pounds for every offender so convicted, and shall have the like certificate, and like payment without fee, as persons may be entitled to for apprehending highwaymen.
The next point after offenders are once apprehended, is to carry them before a proper magistrate, viz., a Justice of the Peace, and this leads us to say something of the nature and authority of that office. My Lord Chancellor, or Lord Keeper of the Great Seal, the Lord High Steward of England, the Lord Marshal, and the Lord High Constable, each of the Justices of the King's Bench, and as some say, the Lord High Treasurer of England, have, as incidental to their offices, a general authority to keep the peace throughout the realm, and to award process for their surety thereof, and to take recognizances for it. The Master of the Rolls has also a like power, either incident to his office, or at least by prescription. As to the ordinary constructors or Justices of the Peace, they are constituted by the King's Commission, which is at present granted on the same form as was settled by the Judges in the 33rd Year of Queen Elizabeth, by which they are appointed and assigned every one of then jointly and separately to keep the King's peace in such a county, and cause to be kept all statutes made for the good of the peace and the quiet government of the Kingdom, as well within liberties, as without, and to punish all those who shall offend against the said statutes, and to cause all those to come before them, or any of them, who threaten any people as to the burning their houses, in order to compel them to be kept in prison until they shall find it. As to the other powers committed to these justices, it would be too long for me to explain them, and therefore after this general Act, I shall go on to take notice of the manner in which the person accused is treated, when brought before them.
First the Justice of Peace examines as carefully as he can into the nature of the offence, and the weight there is of evidence to persuade him of the just ground there is for accusing the person before him; and after he has thoroughly considered this, if the thing appear frivolous or ill-grounded, he may discharge the person, or if he think the circumstances strong enough to require it, he may take the bail of the party accused, or if the nature of the crime be more heinous, and the proof direct and clear, he is bound by an instrument under his hand and seal called a Mittimus, to commit the offender to safe custody until he is discharged according to Law. In carrying to prison for any crime whatsoever, if the party so carried escape himself, or if he be rescued by others, he and they are guilty of a very high misdemeanor, and in some cases, those who assist in making the rescue may be guilty of felony or high treason. But if a prisoner be once committed to gaol for felony, and afterwards break that prison and escape, such breach of prison is felony, by the Statute De Frangentibus Prisonam, and shall be tried for the same as in other cases of felony, and suffer on conviction. My readers will find mention made of a case of this nature in respect to one Roger Johnson, who some years ago was tried for breaking the prison of Newgate, while he remained a prisoner there under a charge of felony, and making his escape; but so tender is the English law that when there appeared a probability that one Fisher (not then taken) broke down the wall of the prison and that Johnson took advantage of that hole and made his escape, he was found not guilty, for want of due proof that he actually did break that hole through which he escaped.
The prisoner being in safe custody, a bill is next to be preferred to the grand jury of the county, in which the nature of the crime is properly set forth, and after hearing the evidence brought by the prosecutor to support the charge, they return the bill to the Court, marked Billa Vera or Ignoramus. In the first case the prisoner is required to be tried by the petit jury of twelve, and to abide their verdict; in case of the latter, he is to be discharged and freed from that prosecution. But the grand jury must find or not find the bill entire, for a Billa Vera to one part and an Ignoramus to another renders the whole proceeding void and is of the same use to the prisoner as if they had returned an Ignoramus upon the whole.
Many without knowing the Law have taken occasion to be very free with its precedents, and to treat them as things written in barbarous Latin, in which an unreasonable, if not ridiculous nicety is sometimes required. But when this comes to be thoroughly examined, we shall find that their proceedings are exactly conformable to reason, for if care and circumspection be necessary in deeds and writings relating to civil affairs, ought it not a fortiori to be more so where the life, liberty, reputation and everything that is dear and valuable to the subject is at stake? Therefore, since there are technical words in all sciences, surely the Law is not to be blamed for preserving certain words to which they have affixed particular and determined meanings for the expressing of such crimes as are made more or less culpable by the Legislature. Thus Murdravit is absolutely necessary in an indictment charging the prisoner with a murder; Caepit is the term made use of in indictments of larceny. Mayhemaivit expresses the fact charged in an indictment of maim; Felonice is absolutely necessary in all indictments of felony of what kind soever; Burglariter is the Latin word made use of to express that breaking which from particular circumstances our Law has called burglary, and appointed certain punishment for those who are guilty thereof. Proditorie expresses the Act in indictments of treason, and even if these are not Latin words, justified by the usage of Roman authors, the certainty which they give to those charges in which they are used, and which could not be so well expressed by circumlocutions, is a full answer to that objection, since the proceedings before a Court aim not at elegancy, but at Justice. But let us now go on to the next step taken to bring the offenders to Judgment.
The bill having been found by the grand jury, the prisoner is brought into the Court where he is to be tried, and set to the bar in the presence of the judges who are to try him. Then he is usually commanded to hold up his hand, but this being only a ceremony to make the person known to the court it may be omitted, or the person indicted saying I am here, will answer the same end. Then the proper officer reads the indictment which has been found against him, in English, and when he hath so done, he demands of the prisoner whether he be guilty or not guilty of the fact alleged against him, to which the prisoner answers as he thinks fit, and this answer is styled his plea. That tenderness which the English Law on all occasions expresses towards those who are to be brought to answer for crimes alleged against them, requires that at his arraignment, the prisoner be totally free from any pain or duress which may disturb his thought and hinder his liberty of pleading as he thinks fit, and for this reason, even in cases of high treason, irons are taken off during the time the prisoner is at the bar, where he stands without any marks of contumely whatsoever.
But in case the prisoner absolutely refuses to answer, or in an impertinent manner delay or trifle with the court, then he is deemed a mute; but if he speaks not at all, nor gives any sign by which the Court shall be satisfied that he is able to speak, then an inquest of officers, that is of twelve persons who happen to be by, are to enquire whether his standing mute arises from his contempt of the Court, or be really an infirmity under which he labours from the hands of God. If it be found the latter, then the Court, as counsel for the prisoner, shall hear the evidence with relation to the fact, and proceed therein as if the prisoner had pleaded not guilty; but if, on the contrary, the Court or the inquest shall be satisfied that the prisoner remains a mute only from obstinacy, then in some cases judgment shall be awarded against him as if he had pleaded or were found guilty, and in others he shall be remitted to his penance, that is to suffer what the Law calls Peine forte et dure, which is pressing, of which the readers will find an account in the subsequent life of Burnworth, alias Frazier; and therefore I shall not treat further of it here.